Commonwealth v. Allen
Citation | 239 Pa.Super. 83,361 A.2d 393 |
Parties | COMMONWEALTH of Pennsylvania v. Harry ALLEN, Appellant. |
Decision Date | 29 March 1976 |
Court | Pennsylvania Superior Court |
Petition for Allowance of Appeal Denied June 18, 1976.
John W. Packel, Chief, Appeals, Div Philadelphia, for appellant.
Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
VAN der VOORT, Judge:
The appellant, Harry Allen, files this direct appeal from his sentencing on various charges, including assault with intent to murder and aggravated robbery. He was convicted, after jury trial, on such charges, arising out of an incident in Philadelphia in 1972, when a tailor was viciously assaulted and robbed by two men visiting his combination residence and place of business. Appellant was tried on these charges jointly with a co-defendant, and both were convicted. On appeal, Allen raises several claims of error.
First appellant contends the trial court erred in refusing to ask potential jurors questions concerning possible prejudice against Blacks. It is alleged that defense counsel had specifically requested that such questions be asked. The record shows the following colloquy (with emphasis added) where pertinent) relevant to this issue:
The record shows the trial judge thereafter asked the following questions of prospective jurors:
(Emphasis added).
and
From a review of the above-quoted colloquy, it appears that appellant has waived his right to raise the first issue. Initially, defense counsel did not request a question dealing with racial prejudice. Subsequently, the appellant declined to accept the court's proposed question which dealt with racial prejudice. Finally, the defense indicated its adoption of the court's proposed compromise question, which the court then proposed to members of the prospective jury panel. Under such circumstances, appellant must be deemed to have waived any objection to the lower court's failure to ask a specific question on Racial prejudice. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974), (see footnote 1); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972); Commonwealth v. Little, 449 Pa. 28, 295 A.2d 287 (1972); Commonwealth v. Donovan, 447 Pa. 450, 291 A.2d 116 (1972).
Next appellant argues that a pre-trial line-up identification made by the victim should have been suppressed. In this regard, he first contends that the line-up occurred after an allegedly illegal arrest, made without probable cause, and second, he claims such line-up took place during a period of impermissible delay [1] between arrest and arraignment. We cannot agree that reversal is mandated by either of these claims.
First, we believe that the record establishes more than sufficient probable cause for appellant's arrest. Appellant and a co-defendant found themselves in police custody as a result of an altercation in a restaurant. There is no claim by appellant that there was a lack of probable cause to bring about this custody. One of the officers present at the station to which appellant was brought knew that those involved in the robbery of the tailor, from the victim's description, were Black and The appellant and his companion from the restaurant altercation fit these descriptions. Moreover, the victim, who was familiar with one of his assailants, [2] told police he knew that one person by the first name 'Harry'--this was the same name used by one of the robbers. [3] The same 'Harry' had given the tailor the home address of '44 Clivedan Street', which turned out to be a nonexistent address. In filling out routine forms following the restaurant altercation, the appellant, Harry Allen, give an address in the forty four hundred block of North Cleveland Street. The officer, knowing all of these facts, and having his suspicion aroused, asked the appellant what he did for a living. Allen replied that he drove a cookie truck. The victim had advised police that the robber named Harry was known to him as one who drove a cookie truck. When the officer learned this last fact he informed the appellant he was under arrest and gave him appropriate warnings.
Probable cause exists if the arresting officer is possessed of facts and circumstances which would warrant a man of reasonable caution to believe the arrested person had committed a crime. Commonwealth v. Sharpe,449 Pa. 35, 296 A.2d 519 (1972). The recitation of record facts set forth above convinces us that probable cause existed to arrest appellant. His initial detention for the restaurant altercation was not challenged, and it is recognized that police can ask questions to gather routine personal data, such as name, address, and occupation in such circumstances. Commonwealth v. Youngblood, 453 Pa. 225, 307 A.2d 922 (1973). No questions during this time were directed to appellant regarding the robbery and assault of the tailor. [4]
The appellant has also raised the argument of impermissible delay between arrest and arraignment. Relying upon Commonwealth v. Futch,supra, he contends that an alleged delay of thirty hours should have caused all identification to be suppressed. Under the circumstances of this case, we need not analyze whether or not there was impermissible delay, [5] since we agree with the lower court's conclusion that the victim's identification at trial clearly had an origin independent of the pre-arraignment line-up. The victim knew the appellant by sight before the crime; he also knew his assailant by the first name 'Harry'. Prior to the attack, the victim saw and talked to the robbers, including the appellant, who used the name, 'Harry', for a period of approximately 15 minutes in his well-lighted premises. He testified positively at trial that his identification of the appellant was based upon his observations of him at the time of the crime and his familiarity with him prior to the crime. See Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Futch, supra. We therefore find appellant's identification contentions to be without merit.
Next appellant contends that the lower court erred in permitting the jury to examine blood-stained scissors which were used in the assault and photos depicting the scene of the crime, wherein blood stains were apparent. The trial judge is normally accorded discretion in permitting photographs (of a crime scene) or instruments of a crime to be introduced in a criminal prosecution. Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959); Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728 (1956); Cert. denied, 352 U.S. 932, 77 S.Ct. 235...
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